exv10w2






Exhibit 10.2




EXECUTION VERSION




STEVEN A. MUSELES

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 16th
day of December 2009 (the “Effective Date”), by and between CapitalSource Inc., a Delaware
corporation (the “Employer” or the “Company”), and Steven A. Museles, an individual (the
“Executive”).



     WHEREAS, the Executive and the Employer entered into that certain Employment Agreement dated
as of February 1, 2007, as amended on December 31, 2008 (the “Original Employment Agreement”);



     WHEREAS, the Executive is currently employed as Executive Vice President and Chief Legal
Officer and Secretary of the Employer;



     WHEREAS, the Executive has resigned as Executive Vice President and Chief Legal Officer and
Secretary and will become Co-Chief Executive Officer and a director of the Company, all effective
as of January 1, 2010; and



     WHEREAS, the Employer and the Executive desire to amend and restate the Original Employment
Agreement and enter into this Agreement to set out the terms and conditions for the continued
employment relationship of the Executive with the Employer.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:



     1. Employment Agreement. On the terms and conditions set forth in this Agreement, the
Employer agrees to continue to employ the Executive and the Executive agrees to continue to be
employed by the Employer for the Employment Period set forth in Section 2 and in the positions and
with the duties set forth in Section 3. Terms used herein with initial capitalization not
otherwise defined are defined in Section 25.



     2. Term. The initial term of employment under this Agreement shall be for a period
ending on December 31, 2012 (the “Initial Term”). The term of employment shall be automatically
extended for an additional 12 month period (the “Extended Term”) on January 1, 2013 and each
subsequent January 1, unless and until the Employer or Executive provides written notice to the
other party in accordance with Section 13 hereof not less than 60 days before such date that such
party is electing not to extend the term of employment under this Agreement (“Non-Renewal”). In
each case, the term of the employment hereunder shall end as of the end of
such Initial Term or Extended Term, as the case may be, unless sooner terminated as
hereinafter set forth. Such Initial Term and all such Extended Terms are collectively referred to
herein as the “Employment Period.” Anything herein to the contrary notwithstanding, if on the date
of a



 









 







Change in Control, the remaining term of the Employment Period is less than 24 months, the
Employment Period shall be automatically extended to the end of the 24 month period following such
Change in Control.



     3. Position and Duties.



          (a) Executive Positions. Effective January 1, 2010, the Executive shall serve as
Co-Chief Executive Officer of the Company. The Executive shall, at the Company’s request also
serve as the sole or co-chief executive officer or such other officer position of any of the
Company’s subsidiaries or affiliates, in each case without further compensation beyond that set
forth in this Agreement. During the Employment Period, the Executive shall have the powers and
authority customarily exercised by individuals serving in the position of sole or co-chief
executive officers for a company the size and nature of the Employer. The Executive shall devote
the Executive’s reasonable best efforts and full business time to the performance of the
Executive’s duties hereunder and the advancement of the business and affairs of the Employer;
provided that the Executive shall be entitled to serve as a member of the board of directors of a
reasonable number of other companies, to serve on civic, charitable, educational, religious, public
interest or public service boards, and to manage the Executive’s personal and family investments,
in each case, to the extent such activities do not materially interfere with the performance of the
Executive’s duties and responsibilities hereunder. The Executive’s service as a member of the
board of directors for a publicly traded company shall be subject to the prior approval of the
Board, which approval shall not be unreasonably withheld.




          (b) Board Nomination. The Company shall use its commercially reasonable best efforts
to cause Executive to be appointed to serve on the Board effective January 1, 2010 and to be
nominated to serve for an additional term at the expiration of his initial Board term (and each
subsequent expiration of the Board term thereafter) for the remainder of the Employment Period;
provided, however, Executive agrees that if his employment terminates as co-Chief Executive Officer
and he does not then remain as or become sole Chief Executive Officer upon such termination, he
will resign from his position on the Board co-terminous with his termination unless otherwise
mutually agreed with the Board.




     4. Place of Performance. During the Employment Period, the Executive shall be based
primarily at a principal office of the Employer designated by the Employer (currently in Chevy
Chase, Maryland) except for reasonable travel on the Employer’s business consistent with the
Executive’s position.



     5. Compensation and Benefits.



          (a) Base Salary. Until January 1, 2010, the Executive will continue to receive his
base salary and other benefits in effect on the Effective Date. Beginning on January 1, 2010 and
for the remainder of the Employment Period, the Employer shall pay to the Executive a base salary
at the rate of no less than $650,000 per calendar year, less applicable deductions (the “Base
Salary”), prorated for any partial year. The Base Salary shall be reviewed for increase by the
Employer no less frequently than annually and may be increased in the discretion of the Employer.
Any such adjusted Base Salary shall constitute the “Base Salary” for purposes of this Agreement.




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The Base Salary shall be paid in substantially equal installments in accordance with the Employer’s
regular payroll procedures. The Executive’s Base Salary may not be decreased during the Employment
Period.




          (b) Annual Bonus. For each calendar year that ends during the Employment Period and
prior to a Change in Control, the Executive shall be eligible to receive an annual target cash
bonus equal to 100% of the Base Salary in effect at the end of such calendar year, in each case as
determined by the Company’s Board or the compensation committee thereof, subject to the Employer’s
overall performance and business prospects, the performance of the Executive and such other factors
as determined by the Board or compensation committee thereof. The bonus paid to the Executive may
be greater or lesser than 100% of Base Salary based upon whether the target performance factors
have been achieved or exceeded. For each calendar year that ends during the Employment Period and
after a Change in Control, the Executive shall be paid in cash an annual bonus in an amount not
less than two times the Executive’s Base Salary as in effect on the last day of such calendar year.
In lieu of any other cash bonus for 2009, the Executive shall receive a $500,000 cash bonus. Any
annual bonus payable to the Executive hereunder shall be paid at the time bonuses are otherwise
paid to other executive officers of the Employer, but in any event, by March 15 of the calendar
year following the year with respect to which such annual bonus is earned. 




          (c) Options and Restricted Stock Units. In consideration for entering into this
Agreement, upon the Effective Date, the Company shall grant to the Executive options to purchase
600,000 shares of the Company’s common stock and 500,000 restricted stock units, vesting in equal
amounts on each of the first, second and third anniversaries of the Effective Date, and subject to
other conditions set forth in the applicable award agreements substantially in the form previously
provided to the Executive. Unless otherwise provided in this Agreement or in the applicable award
agreements, any such unvested options or restricted stock units shall be forfeited by the Executive
upon the termination of the Executive’s employment with the Employer. Except as expressly set
forth in this Agreement, the grant of options and restricted stock units contemplated by this
Section 5(c) shall be governed by and be subject to the terms and conditions set forth in the
CapitalSource Inc. Third Amended and Restated Equity Incentive Plan, as amended from time to time
(the “Plan”), and shall be documented and evidenced by award agreements under the Plan to be
executed by the Employer and the Executive. These grants are intended to reflect the equity grants
to the Executive for the three years 2010, 2011 and 2012; provided, however, that nothing herein
shall be construed to preclude the making of additional grants to the Executive if the Board (or
Compensation Committee of the Board, as applicable) so determines.




          (d) Vacation; Benefits. During the Employment Period, the Executive shall be entitled
to at least four weeks of vacation annually. The Executive shall not be entitled to any cash
compensation for accrued and unused vacation upon termination of employment. In addition, the
Employer shall provide to the Executive all employee and executive benefit plans, practices,
perquisites and programs maintained by the Employer and made generally available to employees or
executives including, without limitation, the pension, retirement, profit sharing, incentive
compensation, savings, medical, hospitalization, disability, dental, life or travel accident
insurance, benefit plans, and sick leave on a basis that (i) prior to a Change in Control is
comparable in all material respects to that provided to any other member of the Employer’s
Executive Committee




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(or successor committee performing substantially similar functions), and (ii)
following a Change in Control is at least as favorable in all material respects to that provided to
the other most senior executives of the Employer. Subject to the terms of this Agreement, all
benefits are provided at the Employer’s sole discretion. Subject to the terms of this Agreement,
the Employer shall have the right to change insurance carriers and to adopt, amend, terminate or
modify employee benefit, equity incentive, deferred compensation and other plans, practices,
perquisites, programs and arrangements at any time and without the consent of the Executive.




     6. Expenses. The Executive is expected and is authorized to incur reasonable expenses
in the performance of his duties hereunder. The Employer shall reimburse the Executive for all
such expenses reasonably and actually incurred in accordance with policies which may be adopted
from time to time by the Employer promptly upon periodic presentation by the Executive of an
itemized account, including reasonable substantiation, of such expenses.



     7. Confidentiality, Non-Disclosure and Non-Competition Agreement. The Employer and
the Executive acknowledge and agree that during the Executive’s employment with the Employer, the
Executive will have access to and may assist in developing Company Confidential Information and
will occupy a position of trust and confidence with respect to the Employer’s affairs and business
and the affairs and business of the Company Affiliates. The Executive agrees that the following
obligations are necessary to preserve the confidential and proprietary nature of Company
Confidential Information and to protect the Employer and Company Affiliates against harmful
solicitation of employees and customers, harmful competition and other actions by the Executive
that would result in serious adverse consequences for the Employer and Company Affiliates:



          (a) Non-Disclosure. During and after the Executive’s employment with the Employer,
the Executive will not knowingly, directly or indirectly through an intermediary, use, disclose or
transfer any Company Confidential Information other than as authorized in writing by the Employer
or within the scope of the Executive’s duties with the Employer as determined reasonably and in
good faith by the Executive. Anything herein to the contrary notwithstanding, the provisions of
this Section 7(a) shall not apply (i) when disclosure is required by law or by any court,
arbitrator, mediator or administrative or legislative body (including any committee thereof) with
actual or apparent jurisdiction to order the Executive to disclose or make accessible any
information; (ii) with respect to any other litigation, arbitration or mediation involving this
Agreement, including, but not limited to, the enforcement of this Agreement; (iii) as to
information that becomes generally known to the public or within the relevant trade or industry
other than due to the Executive’s violation of this Section 7(a); (iv) as to information that is or
becomes available to the Executive on a non-confidential basis from a source which is entitled to
disclose it to the Executive; or (v) as to information that the Executive possessed prior to the
commencement of employment with the Employer.




          (b) Materials. The Executive will not remove, directly or indirectly through an
intermediary, any Company Confidential Information or any other property of the Employer or
any Company Affiliate from the Employer’s premises or make copies of such materials except for
normal and customary use in the Employer’s business as determined reasonably and in good faith by
the Executive. The Employer acknowledges that the Executive, in the ordinary course of his




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duties, routinely uses and stores Company Confidential Information at home and other locations. The
Executive will return to the Employer all Company Confidential Information and copies thereof and
all other property of the Employer or any Company Affiliate at any time upon the request of the
Employer and in any event promptly after termination of Executive’s employment. The Executive
agrees to attempt in good faith to identify and return to the Employer any copies of any Company
Confidential Information after the Executive ceases to be employed by the Employer. Anything to
the contrary notwithstanding, nothing in this Section 7(b) shall prevent the Executive from
retaining a home computer, papers and other materials of a personal nature, including diaries,
calendars and Rolodexes, information relating to his compensation or relating to reimbursement of
expenses, information that he reasonably believes may be needed for tax purposes, and copies of
plans, programs and agreements relating to his employment.




          (c) No Solicitation or Hiring of Employees. During the Non-Compete Period, the
Executive shall not, directly or indirectly through an intermediary, solicit, entice, persuade or
induce any individual who is employed by the Employer or Company Affiliates (or who was so employed
within 180 days prior to the Executive’s action) to terminate or refrain from continuing such
employment or to become employed by or enter into contractual relations with any other individual
or entity other than the Employer or Company Affiliates, and the Executive shall not hire, directly
or indirectly, as an employee, consultant or otherwise, any such person. Anything to the contrary
notwithstanding, the Employer agrees that (i) the Executive’s responding to an unsolicited request
from any former employee of the Employer for advice on employment matters; and (ii) the Executive’s
responding to an unsolicited request for an employment reference regarding any former employee of
the Employer from such former employee, or from a third party, by providing a reference setting
forth his personal views about such former employee, shall not be deemed a violation of this
Section 7(c). Notwithstanding the foregoing, this Section 7(c) shall not preclude the Executive
from soliciting for employment or hiring any person who has been discharged by the Employer or any
Company Affiliate without cause.




     In the event that any restrictive covenant contained in any Company policy, program, agreement
or other arrangement to which the Executive is subject (including any such Company policy, program,
agreement or other arrangement to which the Executive becomes subject after the date hereof) which
is more restrictive than the provisions of this Section 7, the relevant provision or provisions of
this Section 7 shall supersede such more restrictive provision or provisions unless the Company and
the Executive expressly agree, in writing, to have such more restrictive provision or provisions be
controlling.



          (d) Non-Competition.



               (i) During the Non-Compete Period, the Executive shall not, directly or indirectly through an
intermediary, (A) solicit or encourage any client or customer of the Employer or any Company
Affiliate, or any person or entity who was a client or customer within 180 days prior to
Executive’s action, to terminate, reduce or alter in a manner adverse to the Employer or any
Company Affiliate any existing business arrangements with the Employer or any Company
Affiliate or to transfer existing business from the Employer or any Company Affiliate to any other
person or entity, or (B) provide services to any entity if (i) during the preceding 12 months more
than 10% of the revenues of such entity and its affiliates is derived from any business from which



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the Employer derived more than 10% of its revenues during such period (such percentage determined
on a pro forma basis for any business acquired during such 12 month period as if the acquisition
had occurred at the beginning of such 12 month period) (a “Material Business”) or (ii) the services
to be provided by the Executive are competitive with a Material Business and substantially similar
to those previously provided by the Executive to the Employer; provided, however, that following a
Change in Control, this Section 7(d)(i)(B)(i) shall not apply to the Executive, or (C) own an
interest in any entity described in subsection (B)(i) immediately above; provided, however, that
Executive may own, as a passive investor, securities of any such entity that has outstanding
publicly traded securities so long as his direct holdings in any such entity shall not in the
aggregate constitute more than 5% of the voting power of such entity. For purposes of this Section
7(d), a “client or customer” shall be limited to any actual borrower, customer or client of the
Employer (as set forth in the Employer’s CAM or substantially similar successor or other system)
and any other entity in the “term sheet issued,” “term sheet executed” or “credit committee
approved” categories listed in the Employer’s DealTracker or substantially similar successor or
other system. The Executive agrees that, before providing services, whether as an employee or
consultant, to any entity during the Non-Compete Period, he will provide a copy of this Agreement
to such entity, and such entity shall acknowledge to the Employer in writing that it has read this
Agreement. The Executive acknowledges that this covenant has a unique, very substantial and
immeasurable value to the Employer, that the Executive has sufficient assets and skills to provide
a livelihood for the Executive while such covenant remains in force and that, as a result of the
foregoing, in the event that the Executive breaches such covenant, monetary damages would be an
insufficient remedy for the Employer and equitable enforcement of the covenant would be proper.



               (ii) If the restrictions contained in Section 7(d)(i) shall be determined by any court of
competent jurisdiction to be unenforceable by reason of their extending for too great a period of
time or over too great a geographical area or by reason of their being too extensive in any other
respect, Section 7(d)(i) shall be modified to be effective for the maximum period of time for which
it may be enforceable and over the maximum geographical area as to which it may be enforceable and
to the maximum extent in all other respects as to which it may be enforceable.



          (e) Non-Disparagement. Neither the Company nor the Executive shall initiate,
participate or engage in any communication whatsoever with any current or former customer,
supplier, vendor or competitor of the Company or any Company Affiliate or any of their respective
shareholders, partners, members, directors, managers, officers, employees or agents, or with any
current or former shareholder, director, manager, officer, employee or agent of the Company or any
Company Affiliate, which communication could reasonably be interpreted as derogatory or disparaging
to the Executive or the Company or any Company Affiliate, including but not limited to the
business, practices, policies, shareholders, partners, members, directors, managers, officers,
employees, agents, advisors and attorneys of the Company or any Company Affiliate. The Company
agrees to use its commercially reasonable best efforts to cause its directors and officers not to
engage in communication that could reasonably be interpreted as derogatory or disparaging to the
Executive. The foregoing shall not be violated by truthful statements in response to legal
process, required governmental testimony or filings, or administrative or arbitral proceedings
(including, without limitation, depositions in connection with such proceedings).




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          (f) Publicity. During the Employment Period, the Executive hereby grants to the
Employer the right to use, in a reasonable and appropriate manner, the Executive’s name and
likeness, without additional consideration, on, in and in connection with technical, marketing or
disclosure materials, or any combination thereof, published by or for the Employer or any Company
Affiliate, and any documents or other matters to the extent legally required.




          (g) Enforcement. The Executive acknowledges that in the event of any breach of this
Section 7, the business interests of the Employer and the Company Affiliates will be irreparably
injured, the full extent of the damages to the Employer and the Company Affiliates will be
impossible to ascertain, monetary damages will not be an adequate remedy for the Employer
and the Company Affiliates, and the Employer will be entitled to enforce this Agreement by a
temporary, preliminary and/or permanent injunction or other equitable relief, without the necessity
of posting bond or security, which the Executive expressly waives. The Executive understands that
the Employer may waive some of the requirements expressed in this Agreement, but that such a waiver
to be effective must be made in writing and should not in any way be deemed a waiver of the
Employer’s right to enforce any other requirements or provisions of this Agreement. The Executive
agrees that each of the Executive’s obligations specified in this Agreement is a separate and
independent covenant and that the unenforceability of any of them shall not preclude the
enforcement of any other covenants in this Agreement. The Executive further agrees that any breach
of this Agreement by the Employer prior to the Date of Termination shall not release the Executive
from compliance with his obligations under this Section 7, so along as the Employer fully complies
with Sections 9, 11, and 12. The Employer further agrees that any breach during the Employment
Period of this Agreement by the Executive that does not result in the Executive’s being terminated
for Cause shall not release the Employer from compliance with its obligations under this Agreement.
Notwithstanding the foregoing two sentences, neither party shall be precluded from pursuing
judicial remedies as a result of any such breaches.




     8. Termination of Employment.



          (a) Permitted Terminations. The Executive’s employment hereunder may be terminated
during the Employment Period under the following circumstances:




               (i) Death. The Executive’s employment hereunder shall terminate upon the Executive’s
death;



               (ii) By the Employer. The Employer may terminate the Executive’s employment for:



                    (A) Disability. If the Executive shall have been substantially unable to perform,
despite reasonable accommodation, the Executive’s material duties hereunder by reason of illness,
physical or mental disability or other similar incapacity, which inability shall continue for 180
consecutive days or 270 days in any 24-month period (a “Disability”) (provided, that until such
termination, the Executive shall continue to receive his compensation and benefits
hereunder, reduced by any benefits payable to him under any Employer-provided disability insurance
policy or plan applicable to him or her); or



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                    (B) Cause. For Cause or without Cause;



               (iii) By the Executive. The Executive may terminate his employment for any reason
(including Good Reason) or for no reason.



          (b) Termination. Any termination of the Executive’s employment by the Employer or the
Executive (other than because of the Executive’s death) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 13 hereof. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated. Termination of the Executive’s employment shall take
effect on the Date of Termination. The Executive agrees, in the event of any dispute under Section
8(a)(ii)(A) as to whether a Disability exists, and if requested by the Employer, to submit to a
physical examination by a licensed physician selected by mutual consent of the Employer and the
Executive, the cost of such examination to be paid by the Employer. The written medical opinion of
such physician shall be conclusive and binding upon each of the parties hereto as to whether a
Disability exists and the date when such Disability arose. This Section shall be interpreted and
applied so as to comply with the provisions of the Americans with Disabilities Act and any
applicable state or local laws.




     9. Compensation Upon Termination.



          (a) Death. If the Executive’s employment is terminated during the Employment Period
as a result of the Executive’s death, this Agreement and the Employment Period shall terminate
without further notice or any action required by the Employer or the Executive’s legal
representatives. Upon the Executive’s death, the Employer shall pay or provide the following:




               (i) Base Salary. The Employer shall pay to the Executive’s legal representative or
estate, as applicable, a cash lump sum amount equal to one year’s Base Salary within thirty days
following the Executive’s death;



               (ii) Accrued Benefits. The Employer shall pay to the Executive’s legal representative
or estate, as applicable, the Accrued Benefits and the rights of the Executive’s legal
representative or estate with respect to equity or equity-related awards shall be governed by the
applicable terms of the related plan or award agreement (except as provided in the next paragraph);
and



               (iii) Equity Awards. Notwithstanding any provision of the related plan or award
agreements, all outstanding equity awards held by the Executive immediately prior to his death
shall immediately vest, except that the total amount of the equity awards provided for in Section
5(c) shall, if not otherwise vested to a greater extent, be vested at the level of 50% upon his
death during the first year after the date of grant and during the Employment Period, 75% upon his
death during the second year after the date of grant and during of the Employment Period and



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100% upon his death after the second anniversary of the date of grant and during the Employment Period.
All options shall remain exercisable for the length of their remaining term.



     The Employer shall pay to the Executive’s legal representatives or estate, or as may be
directed by the legal representatives of such estate, the Executive’s Accrued Benefits due pursuant
to Section 9(a)(ii), at the time such payments are due. Any payments by the Employer pursuant to
Section 9(a)(i) shall be reduced by the amount of any payments to the Executive’s beneficiaries or
estate paid on account of any life insurance plan or policy provided by the Employer for the
benefit of the Executive. Except as set forth herein, the Employer shall have no further
obligation to the Executive or his legal representatives, estate or heirs upon his death under this
Agreement.




          (b) Disability. If the Employer terminates the Executive’s employment during the
Employment Period because of the Executive’s Disability pursuant to Section 8(a)(ii)(A), (A) the
Employer shall pay to the Executive (i) the Executive’s Base Salary due through the Date of
Termination, and (ii) all Accrued Benefits, if any, to which the Executive is entitled as of the
Date of Termination at the time such payments are due, and (B) all outstanding equity awards held
by the Executive immediately prior to his termination shall immediately vest, except that the total amount
of the equity awards provided for in Section 5(c) shall, if not otherwise vested to a greater
extent, be vested at the level of 50% upon his termination for Disability during the first year
after the date of grant and during the Employment Period, 75% upon his termination for Disability
during the second year after the date of grant and during of the Employment Period and 100% upon
his termination for Disability after the second anniversary of the date of grant and during the
Employment Period. All options shall remain exercisable for the length of their remaining term.
Except as set forth herein, the Employer shall have no further obligations to the Executive under
this Agreement upon Executive’s termination due to Disability pursuant to Section 8(a)(ii)(A).




          (c) Termination by the Employer for Cause or by the Executive without Good Reason.
If, during the Employment Period, the Employer terminates the Executive’s employment for Cause
pursuant to Section 8(a)(ii)(B) or the Executive terminates his employment without Good Reason, the
Employer shall pay to the Executive the Executive’s Base Salary due through the Date of Termination
and all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination,
at the time such payments are due, and the Executive’s rights with respect to then vested or
exercisable equity or equity-related awards shall be governed by the applicable terms of the
related plan or award agreements and all of his then unvested or unexercisable equity or
equity-related awards shall be terminated. Except as set forth herein, the Employer shall have no
further obligations to the Executive under this Agreement upon such termination.




          (d) Termination by the Employer without Cause or by the Executive with Good Reason.




               (i) If, other than following a Change in Control, the Employer terminates the Executive’s
employment during the Employment Period pursuant to Section 8(a)(ii)(B) other than for Cause or if
the Executive terminates his employment hereunder with
Good Reason, the Employer shall pay the Executive all Accrued Benefits, if any, to which the
Executive is entitled as of the Date of Termination, in each case at the time such payments are
due,



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and the Executive’s Base Salary due through the Date of Termination. The Executive shall also
be entitled to the Severance Payments.




               (ii) Notwithstanding
Section 9(d)(i), if, within 24 months following consummation of a Change
in Control or at any time within the period commencing three months prior to (i) the execution of a
binding agreement for a transaction, or (ii) the making of a tender or exchange offer, in either
case that, if consummated, would result in a Change in Control and ending on the date of the Change
in Control or, if earlier, the date that such transaction is completely abandoned by the parties
thereto (regardless of whether a Change in Control actually occurs), the Employer terminates the
Executive’s employment during the Employment Period pursuant to Section 8(a)(ii)(B) other than for
Cause or if the Executive terminates his employment hereunder with Good Reason, the Employer shall
pay the Executive all Accrued Benefits, if any, to which the Executive is entitled as of the Date
of Termination, in each case at the time such payments are due and the Executive’s Base Salary due
through the Date of Termination. The Executive shall also be entitled to the Severance Payments.



          (e) Liquidated Damages. The parties acknowledge and agree that damages which will
result to the Executive for termination by the Employer of the Executive’s employment without Cause
under Section 8(a)(ii)(B) or by the Executive for Good Reason shall be extremely difficult or
impossible to establish or prove, and agree that the Severance Payments shall constitute liquidated
damages for any such termination. The Executive agrees that, except for such other payments and
benefits to which the Executive may be entitled as expressly provided by the terms of this
Agreement or any other applicable benefit plan, such liquidated damages shall be in lieu of all
other claims that the Executive may make by reason of any such termination of his employment and
that, as a condition to receiving the Severance Payments, the Executive will execute a release of
claims substantially in the form of the release attached hereto as Exhibit A. Within two business
days of the Date of Termination, the Employer shall deliver to the Executive the release for the
Executive to execute. The Executive will forfeit all rights to the Severance Payments unless the
Executive executes and delivers to the Company the release within 30 days of delivery of the
release by the Company to the Executive and such release has become irrevocable by virtue of the
expiration of the revocation period without the release having been revoked (the first such date,
the “Release Effective Date”). The Employer shall have no obligation to provide the Severance
Payments prior to the Release Effective Date. Subject to Section 9(g) below, the Severance
Payments shall be made within three business days of the Release Effective Date. If the Executive
fails to comply with his obligations under Section 7, the Executive shall, to the extent such
amounts are paid, vested or distributed pursuant to Section 9 hereof, (i) forfeit outstanding
equity awards, (ii) transfer the shares underlying equity awards that were accelerated pursuant to
Section 9 and settled in shares to the Company for no consideration and (iii) repay the after-tax
amount of the Severance Payments and any equity awards that were accelerated pursuant to Section 9
and settled in cash or sold.




          (f) No Offset. In the event of termination of his employment, the Executive shall be
under no obligation to seek other employment and there shall be no offset against amounts due to
him on account of any remuneration or benefits provided by any subsequent employment he
may obtain. The Employer’s obligation to make any payment pursuant to, and otherwise to




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perform its obligations under, this Agreement shall not be affected by any offset, counterclaim or other
right that the Employer or its affiliates may have against him for any reason.




          (g) Section 409A. To the extent the Executive would be subject to the additional 20%
tax imposed on certain deferred compensation arrangements pursuant to Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), as a result of any provision of this Agreement, such
provision shall be deemed amended to the minimum extent necessary to avoid application of such tax
and preserve to the maximum extent possible the original intent and economic benefit to the
Executive and the Company, and the parties shall promptly execute any amendment reasonably
necessary to implement this Section 9(g).




               (i) For purposes of Section 409A, the Executive’s right to receive installment payments
pursuant to this Agreement including, without limitation, each severance payment and COBRA
continuation reimbursement shall be treated as a right to receive a series of separate and distinct
payments.



               (ii) The Executive will be deemed to have a Date of Termination for purposes of determining
the timing of any payments or benefits hereunder that are classified as deferred compensation only
upon a “separation from service” within the meaning of Section 409A.



               (iii) Notwithstanding any other provision of this Agreement to the contrary, if at the time of
the Executive’s separation from service, (i) the Executive is a specified employee (within the
meaning of Section 409A and using the identification methodology selected by the Company from time
to time), and (ii) the Company makes a good faith determination that an amount payable on account
of such separation from service to the Executive constitutes deferred compensation (within the
meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month
delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A (the
“Delay Period”), then the Company will not pay such amount on the otherwise scheduled payment date
but will instead pay it in a lump sum on the first business day after such six-month period (or
upon the Executive’s death, if earlier), together with interest for the period of delay, compounded
annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of the
dates the payments should otherwise have been provided. To the extent that any benefits to be
provided during the Delay Period are considered deferred compensation under Section 409A provided
on account of a “separation from service,” and such benefits are not otherwise exempt from Section
409A, the Executive shall pay the cost of such benefit during the Delay Period, and the Company
shall reimburse the Executive, to the extent that such costs would otherwise have been paid by the
Company or to the extent that such benefits would otherwise have been provided by the Company at no
cost to the Executive, the Company’s share of the cost of such benefits upon expiration of the
Delay Period, and any remaining benefits shall be reimbursed or provided by the Company in
accordance with the procedures specified herein.



               (iv) (A) Any amount that the Executive is entitled to be reimbursed under this Agreement will
be reimbursed to the Executive as promptly as practical and
in any event not later than the last day of the calendar year after the calendar year in which the



11









 







expenses are incurred, (B) any right to reimbursement or in kind benefits will not be subject to
liquidation or exchange for another benefit, and (C) the amount of the expenses eligible for
reimbursement during any taxable year will not affect the amount of expenses eligible for
reimbursement in any other taxable year.



               (v) Whenever a payment under this Agreement specifies a payment period with reference to a
number of days (e.g., “payment shall be made within thirty (30) days following the date of
termination”), the actual date of payment within the specified period shall be within the sole
discretion of the Company.



          (h) Cell phone/Email Address. If not precluded or limited by applicable law at the
time, the Company shall use its commercially reasonable best efforts upon termination of the
Executive’s employment for any reason, to cause the Executive’s cell phone number assigned to his
Company-provided cell phone to be retained by the Executive if he so elects (and the Company shall
assist in transferring such cell phone number to an account with the cell phone service provider in
the Executive’s name) and, the Company shall forward to the Executive, as soon as reasonably
practicable, relevant e-mail sent to his “capitalsource” email account and received during the 60
days following such termination.




     10. Parachute Limitations.



     Notwithstanding any other provision of this Agreement or of any other agreement, contract, or
understanding heretofore or hereafter entered into by the Executive and the Company, except an
agreement, contract, or understanding hereafter entered into that expressly modifies or excludes
application of this Section 10 (the “Other Agreements”), and notwithstanding any formal or informal
plan or other arrangement heretofore or hereafter adopted by the Company for the direct or indirect
compensation of the Executive (including groups or classes of participants or beneficiaries of
which the Executive is a member), whether or not such compensation is deferred, is in cash, or is
in the form of a benefit to or for the Executive (a “Benefit Arrangement”), if the Executive is a
“disqualified individual,” as defined in Section 280G(c) of the Code, any right to receive any
payment or other benefit under this Agreement shall not become exercisable or vested (i) to the
extent that such right to exercise, vesting, payment, or benefit, taking into account all other
rights, payments, or benefits to or for Executive under the Agreement, all Other Agreements, and
all Benefit Arrangements, would cause any payment or benefit to the Executive under this Agreement
to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then
in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute
Payment, the aggregate after-tax amounts received by the Executive from the Company under this
Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum
after-tax amount that could be received by Executive without causing any such payment or benefit to
be considered a Parachute Payment. In the event that the receipt of any such right to exercise,
vesting, payment, or benefit under this Agreement, in conjunction with all other rights, payments,
or benefits to or for the Executive under the Agreement, any Other Agreement or any Benefit
Arrangement would cause the Executive to be considered to have received a Parachute Payment under
this Agreement that would have the effect of decreasing the after-tax amount received by the
Executive as described in clause (ii) of the preceding sentence, then the Executive shall have the
right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under
this



12









 







Agreement, any Other Agreements, and any Benefit Arrangements that should be reduced or
eliminated so as to avoid having the payment or benefit to the Executive under this Agreement be
deemed to be a Parachute Payment; provided, however, that in order to comply with Section 409A, the
reduction or elimination will be performed in the order in which each dollar of value subject to a
right, payment of benefit reduces the Parachute Payment to the greatest extent.



     11. Indemnification. During the Employment Period and thereafter, the Employer agrees
to indemnify and hold the Executive and the Executive’s heirs and representatives harmless, to the
maximum extent permitted by law, against any and all damages, costs, liabilities, losses and
expenses (including reasonable attorneys’ fees) as a result of any claim or proceeding (whether
civil, criminal, administrative or investigative), or any threatened claim or proceeding (whether
civil, criminal, administrative or investigative), against the Executive that arises out of or
relates to the Executive’s service as an officer, director or employee, as the case may be, of the
Employer, or the Executive’s service in any such capacity or similar capacity with an affiliate of
the Employer or other entity at the request of the Employer, both prior to and after the Effective
Date, and promptly to advance to the Executive or the Executive’s heirs or representatives any and
all such expenses upon written request with appropriate documentation of such expense and upon
receipt of an undertaking by the Executive or on the Executive’s behalf to repay such amount if it
shall ultimately be determined that the Executive is not entitled to be indemnified by the
Employer. During the Employment Period and thereafter covering the Employment Period, the Employer
also shall provide the Executive with coverage under its then current directors’ and officers’
liability policy to the same extent that it provides such coverage to its other executive officers.
If the Executive has any knowledge of any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative or investigative, as to which the Executive may request indemnity
under this provision, the Executive will give the Employer prompt written notice thereof; provided
that the failure to give such notice shall not affect the Executive’s right to indemnification
unless the Employer is materially prejudiced by such failure. The Employer shall be entitled to
assume the defense of any such proceeding and the Executive will use reasonable efforts to
cooperate with such defense. To the extent that the Executive in good faith determines that there
is an actual or potential conflict of interest between the Employer and the Executive in connection
with the defense of a proceeding, the Executive shall so notify the Employer and shall be entitled
to separate representation at the Employer’s expense by counsel selected by the Executive (provided
that the Employer may reasonably object to the selection of counsel within ten (10) business days
after notification thereof) which counsel shall cooperate, and coordinate the defense, with the
Employer’s counsel and minimize the expense of such separate representation to the extent
consistent with the Executive’s separate defense and to the extent possible and consistent with all
applicable rules of legal ethics. This Section 11 shall continue in effect after the termination
of the Executive’s employment or the termination of this Agreement.



     12. Attorney’s Fees. If a Change in Control has not occurred, the Employer shall
reimburse the Executive (and his beneficiaries) any and all reasonable costs and expenses
(including without limitation attorneys’ fees and other charges of counsel) incurred by the
Executive (or any of his beneficiaries) in resolving any controversy, dispute or claim arising out
of or relating to this Agreement, any other agreement or arrangement between the Executive and the
Employer, the Executive’s employment with the Employer, or the termination thereof; provided
that this is not a claim (a) brought by the Employer on account of the Executive’s alleged breach
of



13









 







Section 7 of this Agreement, breach of the Executive’s fiduciary duty of loyalty, or fraud or
material misconduct, if the Employer is the prevailing party, or (b) brought by the Executive
unless the Executive prevails on at least one material claim.



     Following a Change in Control, the Employer shall advance the Executive (and his
beneficiaries) any and all reasonable costs and expenses (including without limitation attorneys’
fees and other charges of counsel) incurred by the Executive (or any of his beneficiaries) in
resolving any controversy, dispute or claim arising out of or relating to this Agreement, any other
agreement or arrangement between the Executive and the Employer, the Executive’s employment with
the Employer, or the termination thereof; provided that the Executive shall reimburse the Employer
any advances to cover expenses incurred by the Executive for claims (a) brought by the Employer on
account of the Executive’s alleged breach of Section 7 of this Agreement, breach of the Executive’s
fiduciary duty of loyalty, or fraud or material misconduct, if the Employer is the prevailing
party, or (b) brought by the Executive unless the Executive prevails on at least one material
claim. Pending the resolution of any such claim, the Executive (and his beneficiaries) shall
continue to receive all payments and benefits described in Section 5 of this Agreement.



     This Section 12 shall continue in effect after the termination of the Executive’s employment
or the termination of this Agreement. 



     13. Notices. All notices, demands, requests, or other communications which may be or
are required to be given or made by any party to any other party pursuant to this Agreement shall
be in writing and shall be hand delivered, mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, delivered by overnight air courier, or transmitted by
facsimile transmission addressed as follows:



          (i) If to the Employer:



CapitalSource Inc.

4445 Willard Avenue

12th Floor

Chevy Chase, Maryland 20815

     Attn: Chairman of the Board and General Counsel

Facsimile Number: 301-841-2340




          (ii) If to the Executive:



Steven A. Museles

Address last shown on the Employer’s Records




     Each party may designate by notice in writing a new address to which any notice, demand,
request or communication may thereafter be so given, served or sent. Each notice, demand, request,
or communication that shall be given or made in the manner described above shall be deemed
sufficiently given or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, confirmation of facsimile transmission or the affidavit



14









 




of messenger being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.




     14. Severability. The invalidity or unenforceability of any one or more provisions of
this Agreement shall not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect.



     15. Effect on Other Agreements. This Agreement constitutes the entire agreement
between the parties respecting the employment of the Executive and supersedes the Original
Employment Agreement by and between the parties.



     16. Survival. It is the express intention and agreement of the parties hereto that
the provisions of Sections 7, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22 and 24 hereof and this
Section 16 shall survive the termination of employment of the Executive. In addition, all
obligations of the Employer to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.



     17. Assignment. The rights and obligations of the parties to this Agreement shall not
be assignable or delegable, except that (i) in the event of the Executive’s death, the personal
representative or legatees or distributees of the Executive’s estate, as the case may be, shall
have the right to receive any amount owing and unpaid to the Executive hereunder and (ii) the
rights and obligations of the Employer hereunder shall be assignable and delegable in connection
with any subsequent merger, consolidation, sale of all or substantially all of the assets or equity
interests of the Employer or similar transaction involving the Employer or a successor entity. The
Employer shall require any successor to the Employer to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be required to perform
it if no such succession had taken place.



     18. Binding Effect. Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties
and their respective heirs, devisees, executors, administrators, legal representatives and
permitted successors and assigns.



     19. Amendment; Waiver. This Agreement shall not be amended, altered or modified
except by an instrument in writing duly executed by the party against whom enforcement is sought.
Neither the waiver by either of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure of either of the parties, on one or more occasions,
to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder,
shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.



     20. Headings. Section and subsection headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for
any purpose, and shall not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.



15









 





     21. Governing Law. This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed in accordance with
the laws of the State of Maryland (but not including any choice of law rule thereof that would
cause the laws of another jurisdiction to apply).



     22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties respecting the employment of the Executive, there being no representations, warranties or
commitments except as set forth herein.



     23. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be an original and all of which shall be deemed to constitute one and the same instrument.



     24. Withholding. The Employer may withhold from any benefit payment or any other
payment or amount under this Agreement all federal, state, city or other taxes as shall be required
pursuant to any law or governmental regulation or ruling provided that any withholding obligation
arising in connection with the exercise of a stock option or the transfer, vesting or conversion of
stock, restricted stock units or other property shall be satisfied through surrendering, forfeiture
and withholding an appropriate number of shares of stock, restricted stock units or appropriate
amount of such other property. The Executive hereby agrees that the tax withholding obligations
with respect to the foregoing shall be satisfied by such surrender, forfeiture and withholding on
the applicable dates and hereby authorizes the Company to use such portions to satisfy such
obligations.



     25. Definitions.



     “Accrued Benefits” means (i) any compensation deferred by the Executive prior to the Date of
Termination and not paid by the Employer or otherwise specifically addressed by this Agreement;
(ii) any amounts or benefits owing to the Executive or to the Executive’s beneficiaries under the
then applicable benefit plans of the Employer; (iii) any amounts owing to the Executive for
reimbursement of expenses properly incurred by the Executive prior to the Date of Termination and
which are reimbursable in accordance with Section 6; and (iv) any other benefits or amounts due and
owing to the Executive under the terms of any plan, program or arrangement of the Employer.



     “Board” means the Company’s Board of Directors.



     “Cause” shall be limited to the following events (i) the Executive’s conviction of, or plea of
nolo contendere to, a felony (other than in connection with a traffic violation) under any state or
federal law; (ii) the Executive’s willful and continued failure to substantially perform his
essential job functions hereunder after receipt of written notice from the Employer that
specifically identifies the manner in which the Executive has substantially failed to perform his
essential job functions and specifying the manner in which the Executive may substantially perform
his essential job functions in the future; (iii) a material act of fraud or willful and material
misconduct with respect, in each case, to the Employer or Company Affiliates, by the Executive; or
(iv) a willful and material breach of Section 7(c) or (d) of this Agreement. For purposes of this
provision, no act or failure to act, on the part of the Executive, shall be considered “willful”
unless it is done,



16









 







or omitted to be done, by the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of the Employer or Company Affiliate, as
appropriate. Anything herein to the contrary notwithstanding, the Executive shall not be
terminated for “Cause” hereunder unless (A) written notice stating the basis for the termination is
provided to the Executive, (B) as to clause (ii) of this paragraph, he is given 30 days to cure the
neglect or conduct that is the basis of such claim (it being understood that any errors in expense
reimbursement may be cured by repayment), (C) if he fails to cure such neglect or conduct, the
Executive has an opportunity to be heard with counsel of his choosing before the full Board prior
to any vote regarding the existence of Cause and (D) there is a vote of a majority of the members
of the Board, excluding the Executive, to terminate him for Cause.



     “Change in Control” means the occurrence of one or more of the following events: (i) any
“person” (as such term is used in Sections 3(a)(9) and 13(d) of the Securities Exchange Act of
1934 as amended (the “Act”)) or “group” (as such
term is used in Section 13(d)(3) of the Act) is or
becomes a “beneficial owner” (as such term is used in Rule 13d-3 promulgated under the Act) of more
than 30% of the Voting Stock of the Employer; (ii) within any 24 month period the majority of the
Board consists of individuals other than Incumbent Directors, which term means the members of the
Board on the Effective Date; provided that any person becoming a director subsequent to such date
whose election or nomination for election was supported by two-thirds of the directors who then
comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the
Employer adopts any plan of liquidation providing for the distribution of all or substantially all
of its assets; (iv) the Employer transfers all or substantially all of its assets or business (unless the
shareholders of the Employer immediately prior to such transaction beneficially own, directly or
indirectly, in substantially the same proportion as they owned the Voting Stock of the Employer,
all of the Voting Stock or other ownership interests of the entity or entities, if any, that
succeed to the business of the Employer or the Employer’s ultimate parent company if the Employer
is a subsidiary of another corporation); or (v) any merger, reorganization, consolidation or
similar transaction unless, immediately after consummation of such transaction, the shareholders of
the Employer immediately prior to the transaction hold, directly or indirectly, more than 50% of
the Voting Stock of the Employer or the Employer’s ultimate parent company if the Employer is a
subsidiary of another corporation (there being excluded from the number of shares held by such
shareholders, but not from the Voting Stock of the combined company, any shares received by
affiliates of such other company in exchange for stock of such other company). For purposes of
this Change in Control definition, the “Employer” shall include any entity that succeeds to all or
substantially all of the business of the Employer and “Voting Stock” shall mean securities or
ownership interests of any class or classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect the directors of a corporation.



     “Company Affiliate” means any entity controlled by, in control of, or under common control
with, the Employer.



     “Company Confidential Information” means information known to the Executive to constitute
trade secrets or proprietary information belonging to the Employer or Company Affiliates or other
non-public information, confidential financial information, operating budgets, strategic plans or
research methods, personnel data, projects or plans, or non-public information regarding the terms
of any existing or pending transaction between Employer or any Company



17









 







Affiliate and an existing or pending client or customer (as the phrase “client or customer” is
defined in Section 7(d)(i) hereof) or other person or entity, in each case, received by the
Executive in the course of his employment by the Employer or in connection with his duties with the
Employer. Notwithstanding anything to the contrary contained herein, the general skills, knowledge
and experience gained during the Executive’s employment with the Employer, information publicly
available or generally known within the industry or trade in which the Employer competes and
information or knowledge possessed by the Executive prior to his employment by the Employer, shall
not be considered Company Confidential Information.



     “Date of Termination” means (i) if the Executive’s employment is terminated by the Executive’s
death, the date of the Executive’s death; (ii) if the Executive’s employment is terminated because
of the Executive’s Disability pursuant to Section 8(a)(ii)(A), 30 days after Notice of Termination,
provided that the Executive shall not have returned to the performance of the Executive’s duties on
a full-time basis during such 30-day period; or (iii) if the Executive’s employment is terminated
by the Employer pursuant to Section 8(a)(ii)(B) or by the Executive pursuant to Section 8(a)(iii),
the date specified in the Notice of Termination. Notwithstanding any provision of this Agreement
to the contrary, for purposes of any provision of this Agreement providing for the payment of any
amounts or benefits upon or following a termination of employment that are considered deferred
compensation under Code Section 409A, references to Executive’s termination of employment (and
corollary terms) with the Company shall be construed to refer to Executive’s “separation from
service” (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the Company.



     “Extended Term” shall have the meaning set forth in Section 2.



     “Good Reason” means, unless otherwise agreed to in writing by the Executive, (i) a reduction
in the Executive’s Base Salary, or after a Change in Control, the annual bonus payable to the
Executive under Section 5(b), (ii) the requirement that the Executive report to someone other than
the Board of Directors, (iii) a material diminution in the Executive’s title, authority,
responsibilities or duties, provided, however, that the existence as of or subsequent to the
Effective Date of James J. Pieczynski as a co-CEO, the resignation or removal of James J.
Pieczynski as co-CEO, the removal of John K. Delaney as Executive Chairman or the election or
existence of a Chairman of the Board, shall not be deemed a material diminution (provided that the
election or appointment of anyone other than James J. Piecyzinski to the position of co-CEO or the
election or appointment of anyone other than John K. Delaney to the position of Executive Chairman
shall constitute, in either case, a material diminution); (iv) the assignment of duties
inconsistent with the Executive’s position or status with the Employer as of January 1, 2010; (v) a
relocation of the Executive’s primary place of employment to a location more than 25 miles further
from the Executive’s primary residence than the current location of the Employer’s offices; (vi)
any other material breach of the terms of this Agreement or any other agreement that breach is not
cured within ten days after the Executive’s delivery of a written notice of such breach to the
Employer; (vii) any purported termination of the Executive’s employment by the Employer that is not
effected in accordance with the applicable provisions of this Agreement; (viii) the failure to be
appointed to the Board as of January 1, 2010 or to be nominated for an additional term as a member
of the Board upon each expiration of such Board term during the Employment Period; (ix) the failure
of the Employer to obtain the assumption in writing of its obligations under this Agreement



18









 







by any successor to all or substantially all of the assets of the Employer within 15 days after a
merger, consolidation, sale or similar transaction or (x) the delivery of a notice of Non-Renewal
by the Employer. In order to invoke a termination for Good Reason, the Executive must deliver a
written notice of such breach to the Employer within 60 days of the occurrence of the breach and
Employer shall have 30 days to cure the breach. In order to terminate his employment, if at all,
for Good Reason, Executive must terminate employment within 30 days of the end of the cure period
if the breach has not been cured.



     “Non-Compete Period” means the period commencing on the Effective Date and ending twelve
months after the earlier of the expiration of the Employment Period or the Executive’s Date of
Termination.



     “Severance Payments” means (1) a lump sum cash payment equal to two times the Executive’s Base
Salary as of the Date of Termination (except for purposes of Section 9(d)(ii), in lieu of the
foregoing, the Executive shall receive a lump sum cash payment equal to two and one half times the
Executive’s Base Salary as of the Date of Termination plus two and one half times the average
bonuses earned for the two years prior to the year in which the Date of Termination occurs), (2) a
pro-rata bonus for the year of termination payable when bonuses for such year are normally paid,
and, if based on objective performance or other criteria, such bonus shall be based on actual
achievement of such criteria for such year of termination, (3) all of Executive’s unvested and
unexercisable equity awards that are outstanding as of the Date of Termination shall be vested in
all circumstances (except as noted below) and remain exercisable for two years following the Date
of Termination, or in a termination subject to Section 9(d)(ii), five years following the Date of
Termination (or, in any case, if earlier, the original expiration date of the award) except that,
in a termination subject to Section 9(d)(i) only, the total amount of the equity awards provided
for in Section 5(c) shall, if not otherwise vested to a greater extent, be vested at the level of
50% if the Date of Termination is during the first year after the date of grant and during the
Employment Period, 75% if the Date of Termination is during the second year after the date of grant
and during of the Employment Period and 100% if the Date of Termination is after the second
anniversary of the date of grant and during the Employment Period, and (4) the Executive and his
covered dependents shall be entitled to continued participation on the same terms and conditions as
applicable immediately prior to the Executive’s Date of Termination for 24 months in such medical,
dental, hospitalization and life insurance coverages in which the Executive and his eligible
dependents were participating immediately prior to the Date of Termination or such earlier time
that Executive becomes eligible for comparable benefits elsewhere; provided, however, if such
insurance coverage cannot be provided by the Company for any period after 18 months, the Company
will pay the Executive the amount on an after-tax basis equal to the COBRA premiums for the
subsequent period. Notwithstanding the foregoing, for purposes of termination with Good Reason due
to the non-renewal of this Agreement, for purposes of clause 1 above, the Executive shall only be
entitled to a lump sum cash payment equal to one times the Executive’s Base Salary as of the Date
of Termination.



19









 





     IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have
caused this Agreement to be duly executed and delivered on their behalf.



	 	 	 	 	 
	 	CAPITALSOURCE INC.

 	 
	 	/s/ John K. Delaney
 	 
	 	Name:  	John K. Delaney 	 
	 	Title:  	Chief Executive Officer 	 
	 
	 	EXECUTIVE

 	 
	 	/s/ Steven A. Museles
 	 
	 	Steven A. Museles 	 
	 	 	 



20









 






	 	 	 	 	 



EXHIBIT A




General Release of Claims





     Consistent with Section 9 of the Employment Agreement dated December ___, 2009 between me and
CapitalSource Inc. (the “Employment Agreement”) and in consideration for and contingent upon my
receipt of the Accrued Benefits and the Severance Payments set forth in Section 9 of the
Employment Agreement, I, for myself, my attorneys, heirs, executors, administrators, successors,
and assigns, do hereby fully and forever release and discharge CapitalSource Inc. (“CapitalSource”)
and its past, current and future affiliated entities, as well as its and their predecessors,
successors, assigns, and its and their past, current and former directors, officers, partners,
agents, employees, attorneys, and administrators from all suits, causes of action, and/or claims,
demands or entitlements of any nature whatsoever, whether known, unknown, or unforeseen, which I
have or may have against any of them arising out of or in connection with my employment by
CapitalSource, the Employment Agreement, the termination of my employment with CapitalSource, or
any event, transaction, or matter occurring or existing on or before the date of my signing of this
General Release, except that I am not releasing any claims arising under Sections 10, 11, or 12 of
the Employment Agreement, any other right to indemnification that I may otherwise have, or any
claims arising after the date of my signing this General Release. I agree not to file or otherwise
institute any claim, demand or lawsuit seeking damages or other relief and not to otherwise assert
any claims, demands or entitlements that are released herein. I further hereby irrevocably and
unconditionally waive any and all rights to recover any relief or damages concerning the claims,
demands or entitlements that are released herein. I represent and warrant that I have not
previously filed or joined in any such claims, demands or entitlements against CapitalSource or the
other persons or entities released herein and that I will indemnify and hold them harmless from all
liabilities, claims, demands, costs, expenses and/or attorney’s fees incurred as a result of any
such claims, demands or lawsuits.



     This General Release specifically includes, but is not limited to, all claims of breach of
contract, employment discrimination (including any claims coming within the scope of Title VII of
the Civil Rights Act, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical
Leave Act, and Article 49B of the Maryland Code, all as amended, or any other applicable federal,
state, or local law), claims under the Employee Retirement Income Security Act, as amended, claims
under the Fair Labor Standards Act, as amended (or any other applicable federal, state or local
statute relating to payment of wages), wage orders, claims concerning recruitment, hiring,
termination, salary rate, severance pay, stock options, wages or benefits due, sick leave, holiday
pay, vacation pay, life insurance, group medical insurance, any other fringe benefits, worker’s
compensation, termination, employment status, libel, slander, defamation, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any and all tort,
contract, or other claims which might have been asserted by me or on my behalf in any suit, charge
of discrimination, or claim against CapitalSource or the persons or entities released herein.



     CapitalSource and I acknowledge that different or additional facts may be discovered in
addition to what we now know or believe to be true with respect to the matters released in this



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General Release, and we agree that this General Release shall be and remain in effect in all
respects as a complete and final release of the matters released, notwithstanding any different or
additional facts.



     Claims Excluded from this Release: However, notwithstanding the foregoing, nothing in
this General Release shall be construed to waive any right that is not subject to waiver by private
agreement, including, without limitation, any claims arising under state unemployment insurance or
workers compensation laws. I understand that rights or claims under the Age Discrimination in
Employment Act that may arise after I execute this General Release are not waived. Likewise,
nothing in this General Release shall be construed to prohibit me from filing a charge with or
participating in any investigation or proceeding conducted by the EEOC, NLRB, or any comparable
state or local agency. Notwithstanding the foregoing, I agree to waive my right to recover
individual relief in any charge, complaint, or lawsuit filed by me or anyone on my behalf.



     I acknowledge that I have been given an opportunity of twenty-one (21) days to consider this
General Release and that I have been encouraged by CapitalSource to discuss fully the terms of this
General Release with legal counsel of my own choosing. Moreover, for a period of seven (7) days
following my execution of this General Release, I shall have the right to revoke the waiver of
claims arising under the Age Discrimination in Employment Act, a federal statute that prohibits
employers from discriminating against employees who are age 40 or over. If I elect to revoke this
General Release in whole or in part within this seven-day period, I must inform CapitalSource by
delivering a written notice of revocation to CapitalSource’s General Counsel, 4445 Willard Avenue,
12th Floor, Chevy Chase, Maryland 20815, no later than 11:59 p.m. on the seventh
calendar day after I sign this General Release. I understand that, if I elect to exercise this
revocation right, this General Release shall be voided in its entirety at the election of
CapitalSource and CapitalSource shall be relieved of all obligations to make the Severance Payments
described in Section 9 of the Employment Agreement. I may, if I wish, elect to sign this General
Release prior to the expiration of the 21-day consideration period, and I agree that if I elect to
do so, my election is made freely and voluntarily and after having an opportunity to consult
counsel.



	 	 	 	 	 	 	 
	 

	 	AGREED:
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 

	 	 

	 	 
	 

	 	Steven A. Museles
	 	Date	 	 







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